A unanimous panel of the Sixth Circuit held today in D.O., et al. v. Glisson that the Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983.  The CWA provides for federal foster care and adoption assistance to eligible states.  To be eligible, a state must submit a plan that meets the CWA’s criteria, and also “provide[] for foster care maintenance payments” for each child “removed from the home of a relative.”  The Court held this provision was not merely “a roadmap that states may choose to follow to receive matching funds,” but that it conferred an individually enforceable right on foster parents.

The Court was guided by the statutory text, explaining that “[w]hen Congress names the state as the subject, writes in the active voice, and uses mandatory language, it leaves no doubt about the actor’s identity or what the law requires.” The Court also rejected the state of Kentucky’s argument that the plaintiff was not entitled to payments because she was the childrens’ mother’s aunt, holding that “[t]o the extent . . . failure to make maintenance payments turns on the distinction between relative and non-relative foster care providers, it plainly violates federal law.”

The Sixth Circuit split with the Eighth Circuit on this issue, making this case a potential contender for the Supreme Court. It will be interesting to see whether the State of Kentucky pursues certiorari.